Saturday, July 28, 2007

Smurfing revisited

Carl F.A. Maughan won in State v. Maness, No. 96,024 (Kan. App. July 27, 2007)(unpublished), reversing a Sedgwick County conviction for possession of pseudoephedrine. Mr. Maness is the co-defendant to Glenda Glassock, who won her appeal several weeks ago. Here is my blog entry on that case, which includes a lot of the factual details of a practice called "smurfing." This COA panel agreed that officers violated the Fourth Amendment:
The separate purchase of cold pills by two individuals who return to an out-of-state vehicle, without more, does not rise to the level of reasonable suspicion. It would be difficult in a constitutional setting to find that facts insufficient to rise to reasonable suspicion for some persons can satisfy the reasonable suspicion standard simply because the individuals appear to be nonresidents.
The COA acknowledges the problem of "smurfing" but (properly) focuses on what information the officers had at the time of contact. The COA noted that the state "cites to no cases where courts have recognized one shopping trip was a sufficient pattern of activity as a basis for an investigative detention." That's good news for all of us who shop at stores for groceries, etc.

[Update: the state did not file a PR and the mandate issued on August 23, 2007].

Friday, July 27, 2007

Is that Crow dead?

Rachael Pickering won in State v. Laturner, No. 96,086 (Kan. App. July 27, 2007), reversing a Cherokee County possession conviction. The main issue had to do with a claim that K.S.A. 22-3437, allowing admission of lab test results without the chemist, is unconstitutional after Crawford. I had blogged about this issue here.

The KSC had held that the statute was constitutional in State v. Crow, 266 Kan. 690 (1999), largely using the rationale of Ohio v. Roberts. But, in Laturner, the COA noted that the KSC has also held that "'To the extent that the analysis in previous decisions of this court differs from the Controntation Clause analysis set forth in this opinion, these previous decisions are overuled.' Crow is, therefore, no longer good law."

The COA acknowledged that there is a wide split of authority among courts regarding whether lab reports are testimonial, but concluded that they are:

The lab report challenged by Laturner is testimonial. In identifying the category of witnesses whom a criminal defendant is entitled to confront, the Crawford Court defined a "witness" as "one who bears testimony" against an accused. It defined "testimony" as a "solemn declaration or affirmation made for the purpose of establishing or proving some fact." Testimonial statements are made by witnesses who bear testimony. "An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." [Crawford v. Washington, 541 U.S. 36, 51 (2004)]. The Crawford Court identified three "formulations" of this core class of testimonial statements. These include the functional equivalent of ex parte in-court testimony, such as affidavits, and "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." 541 U.S. at 51-52. The forensic scientist who prepared Laturner's lab report was a witness; the statements in her lab report were testimony; and she knew when preparing her report that it would be used by the State at Laturner's trial to prove he committed the crime of possessing methamphetamine.
This is an important issue being litigated across the country. The SCOTUS is likely to take up a case from somewhere in the next term or two to resolve the split. Or that's what Professor Friedman contemplates here at the Confrontation Blog.

[Update: the state filed a PR on August 20, 2007].

[Further update: the KSC granted the PR on December 19, 2007].

[Further update: on October 9, 2009, the KSC held that K.S.A 22-3437 is unconstitutional if it includes any requirement that a defendant make any showing beyond a confrontation clause objection to compel confrontation. As applied to Mr. Laturner, the KSC reversed and remanded for new trial. Here is the post reporting the KSC decision.]

Real opportunity to cross-examine

Quentin John Boone won in State v. Noah, No. 91,353, (Kan. July 27, 2007), reversing four Rooks County aggravated indecent liberties convictions. The issue involved admission of the victim's preliminary hearing testimony at trial. The KSC majority opinion narrowed the issue noting that the parties agreed the subject testimony was testimonial under Crawford and that the parties did not dispute that the witness was unavailable. The only issue was "whether Noah had a prior opportunity to cross-examine" the witness at preliminary hearing where the witness had become emotional and could not continue testifying.

The KSC noted that SCOTUS case law provides little guidance on what constitutes "an adequate opportunity" to cross-examine that would allow admission of preliminary hearing testimony. The KSC reviewed Fifth Circuit and Ninth Circuit cases and also SCOTUS case law on improper limitation of cross-examination and concluded that the cross-examination in this case was not adequate:
Our review of the entire record under these specific facts leads us to disagree with the State's argument that Noah had a sufficient opportunity to effectively cross-examine T.C. However, in reaching this conclusion, we also reject Noah's argument that the cross-examination is not sufficient until defense counsel determines that it is or unless it is completed. Rather, we adopt the case-by-case approach used by the Acosta and Wilmore courts.

In adopting this approach, we do not grant attorneys license to filibuster, purposely confuse, or harass children or other vulnerable witnesses in an attempt to make an otherwise competent witness unavailable. Nor do we want to give incentive for those same witnesses to be relieved of their obligation to be made "available" by answering only a few questions on cross-examination because it is uncomfortable or intimidating, and thereby defeating a defendant's right to confrontation. In this case, we acknowledge that T.C.'s inability to testify was not created by any intentional motivation to be unavailable. Further, while defense counsel's cross-examination may be characterized as confusing and unclear, we find no purposeful conduct that would rise to the level of intentionally attempting to disqualify T.C. as a competent witness. Applying the Van Arsdall standard to the facts of this case, we conclude that the limitation of Noah's cross-examination caused by T.C.'s inability to continue prohibited Noah from engaging in otherwise appropriate cross-examination aimed at exposing facts from which the jury could have drawn inferences about T.C.'s reliability.

Another case in the ever-evolving world of Confrontation Clause litigation.

What's it take to get a hearing?

Michael Whalen won in Swenson v. State, No. 94,207 (Kan. July 27, 2007), reversing summary dismissal of Mr. Swenson's K.S.A. 60-1507 motion in Sedgwick County. One issue involved potential IAC for failure of appellate counsel to file a petition for review, which was decided favorably and consistently with my previous blog entry (here). I thought another notable part of the Swenson decision was a claim regarding trial counsel failure to investigate a potential witness. The district court and COA had held that Mr. Swenson had failed to attach affidavits from the potential witness and as such had "failed to establish that his counsel was ineffective in this regard."

We see a lot of these type of 1507 rulings: "Conclusory allegations insufficient to require an evidentiary hearing. Summary dismissal." The problem is that such ruling essentially require a movant to prove his or her case to get a hearing, which is sort of putting the cart before the horse. The KSC rejected this rationale:

Swenson argues the Court of Appeals inappropriately imposed a burden on him to provide an affidavit from his mother with his petition. We agree.

Granted, a movant has the burden to prove his or her K.S.A. 60-1507 motion warrants an evidentiary hearing; the movant must make more than conclusory contentions and must state an evidentiary basis in support of the claims or an evidentiary basis must appear in the record. However, in stating the evidentiary basis, the K.S.A. 60-1507 motion must merely "set forth a factual background, names of witnesses or other sources of evidence to demonstrate that petitioner is entitled to relief." Consistent with this statement . . . the form approved by this court for K.S.A. 60-1507 motions, in effect at the time Swenson filed his motion, required: "State concisely all grounds on which you base your allegation that you are being held in custody unlawfully" and "[s]tate concisely and in the same order the facts which support each of the grounds set out . . . and the names and addresses of the witnesses or other evidence upon which you intend to rely to prove such facts." Supreme Court Rule 183. Thus, the rule does not require affidavits. Rather, this court has held it is error to deny a K.S.A. 60-1507 motion without a hearing where the motion alleges facts which do not appear in the original record but which, if true, would entitle the movant to relief, and the motion identifies readily available witnesses whose testimony would support such facts or other sources of evidence.

Under the rule and statute a hearing and appointment of counsel are supposed to be the norm, not the exception. Some of this language should help movants get those hearings.

Right to counsel for petitions for review

Lots of interesting decisions today. Let's start with a decision that is probably only interesting to appellate nerds like me.

Brent Getty and Heather Cessna (now both having moved on to other jobs) won in Kargus v. State, No. 94,432 (Kan. October 15, 2007)(modified opinion), reversing summary denial of Mr. Kargus' K.S.A. 60-1507 motion in Johnson County. I argued the case in the KSC. The issue has to do with what, if anything, can a client do if his or her attorney fails to file a petition for review after losing at the COA. The problem is SCOTUS precedent that says that a defendant has no constitutional right to counsel for a discretionary appeal (like a petition for review). And even if you have some such right, the state argued that it would be impossible to show ineffective assistance of counsel because he or she would have to show that the KSC would have granted the petition (for prejudice).

The KSC held that defendant do have a statutory right to counsel throughout the state appellate proceedings. And, as in previous cases, the KSC has held that if there is a statutory right to counsel, it could presume that the legislature did not intend to provide ineffective counsel.

On the issue of what showing must be made, the KSC reviewed SCOTUS precedent for general IAC (Strickland), IAC by failure to file a direct appeal (Roe v. Flores-Ortega, 528 U.S. 470 (2000), and its own precedent governing late direct appeals (State v. Ortiz). The KSC acknowledged the differences between direct appeals and petitions for review and therefore rejected Mr. Kargus' attempt to apply Ortiz. But the KSC also rejected the state's suggestion that ordinary Strickland prejudice applies. For claims involving failure to file a petition for review, the KSC adoped the Flores-Ortega middle ground:

We hold that when a claim is made that counsel was ineffective for failing to file a petition for review following a negative outcome in a direct appeal from a felony conviction and sentence, the standards or test to be applied are: (1) If a defendant has requested that a petition for review be filed and the petition was not filed, the appellate attorney provided ineffective assistance; (2) a defendant who explicitly tells his or her attorney not to file a petition for review cannot later complain that, by following instructions, counsel performed deficiently; (3) in other situations, such as where counsel has not consulted with a defendant or a defendant's directions are unclear, the defendant must show (a) counsel's representation fell below an objective standard of reasonableness, considering all the circumstances; and (b) the defendant would have directed the filing of the petition for review. A defendant need not show that a different result would have been achieved but for counsel's performance.
This case is also notable for resolution of the question of whether the district court is empowered to provide a remedy.

If on remand the district court determines that Kargus has established ineffective assistance of counsel, the district court should allow counsel 30 days in which to file a petition for review from the Court of Appeals' unpublished decision filed June 2, 2006.
I hate to tell you I told you so, but . . . . (see here for previous post).

And thanks to the Defender Project for a great amicus brief cited by the KSC in its decision.

[Update: the KSC issued a modified opinion in this case correct a couple of incorrect factual assertions. The substance of the opinion did not change. The link has been updated to the modified opinion.]

Thursday, July 26, 2007

KBA Outstanding Sevice Award

I was pleased to read in my most recent KBA Journal that former ADO attorney and current KU Defender Project professor Elizabeth Seale Cateforis was given a 2007 Outstanding Service Award. Here is a press release regarding all of the KBA awards given this year. Here is an excerpt of the article from the KBA Journal:
Cateforis received a KBA Outstanding Service Award for her many contributions to the Kansas Bar Association, most recently for serving as the editor and one of 30 authors on the 31-chapter revision and update of the Fourth Edition of the Kansas Criminal Law Handbook.
Well deserved congratulations, Beth.

Wednesday, July 25, 2007

New blog

Paige Nichols sent me a notice that Melody Evans and Kirk Redmond, two very smart defense attorneys, have started a new blog called Kansas Federal Defender. Because they are federal public defenders, I suppose it will focus more on federal court issues, but the Fourth Amendment is the Fourth Amendment. Plus knowing about what's going on in federal courts will be very useful to me as a state practitioner. And in any case, many practitioners practice in both state and federal courts, so I think this is a welcome addition to the blogosphere.

Their early entries also include comments on Kansas state appellate cases and statutory changes, so it will likely be a great resource.

Thanks Melody and Kirk.

Thursday, July 19, 2007

Bad Terry stop

Bob Thomas won in State v. Green, No. 96,336 (Kan. App. July 13, 2007) (unpublished), reversing a Wyandotte County possession with intent to sell conviction on Fourth Amendment grounds. The COA majority noted the following recitation of the totality of the circumstances:

“That it was 11:30 p.m. and basically in the middle of winter. The officers were there on what has been characterized as a Weed and Seed Program in or near a public housing authority project. That program is basically to enforce drug laws in an area that's known to have drug problems. The officers drove by the car that the defendant was sitting in. As the officers drove by, he ducked down, and I believe that act of ducking down when the officers drove by basically gave them reasonable suspicion that something was not right and that authorized further investigation and inquiry.”

In our view, although reasonable suspicion is a less demanding standard than probable cause, these undisputed facts constitute only “an unparticularized suspicion or hunch” of wrongdoing, which is insufficient for a finding of reasonable suspicion.

Because the COA majority held that this did not constitute reasonable suspicion, it suppressed the seized evidence and reversed the conviction.

[Update: the state did not file a PR and the mandate issued on August 17, 2007].

Monday, July 16, 2007

Late amendment dooms felony murder conviction

James R. Pratt of Monnat & Spurrier won in State v. Wade, No. 95,649 (Kan. July 13, 2007), reversing a Chautauqua County felony murder conviction. The state had charged Mr. Wade with felony murder based on an underlying felony of aggravated burglary, but the initial information did not specify what offense underlay the aggravated burglary charge. Before trial, the state amended the information to allege that Mr. Wade entered the residence with intent to commit murder. After the close of evidence, and after Mr. Wade testified, the state sought to amend the complaint again to allege an alternative offense underlying the burglary charge: aggravated assault. The KSC observed the unfairness of allowing the state to change its theory after hearing Mr. Wade's testimony:
Wade made the critical decision to testify at trial, based upon everyone's understanding of what the State had assumed the responsibility of proving. The modified instruction permitted by the trial court relieved the State of its obligation to prove a premeditated intent to kill as an element of aggravated burglary. Rather, the State could meet its burden by convincing the jury that Wade entered the Coffman house with the intent to scare Juul with the handgun, which, of course, was exactly what Wade had admitted on the witness stand. In other words, the erroneous instruction, adding aggravated assault as an alternative ulterior felony, transformed Wade's defense testimony into an after-the-fact confession.
The KSC found the state's excuses for the late amendment to be circular and held that the error required reversal of the aggravated burglary conviction:

Finally, the State complains that it could not have anticipated Wade's testimony and that public policy mandates that we not allow a defendant to get away with a crime based on one predicate felony by confessing to another felony. First, one might be somewhat skeptical of the notion that a prosecutor could not anticipate a defendant declaring, "I didn't mean to do it." More to the point, however, our public policy is that the State has the burden to prove, beyond a reasonable doubt, that the defendant is guilty of the crimes charged, and the defendant carries the presumption of innocence. If the State's proof is challenged by the defendant's self-serving testimony, then it is the jury's function to weigh the evidence and assess the defendant's credibility. We do not change the rules of engagement, after the fact, to dilute the State's burden and make a conviction more likely. The integrity of the process is the cornerstone of our criminal justice system.

In summary, the instruction on the elements of aggravated burglary was erroneous in adding an ulterior felony for which the defendant had no notice prior to the completion of the evidentiary portion of the trial. The error adversely affected the defendant's ability to prepare for and present his defense and prejudiced the defendant's critical decision to waive his Fifth Amendment rights and testify. The error cannot be excused in this case.

The KSC went on to analyze whether this error also affected the felony-murder conviction and had little trouble noting the extreme prejudicial impact of the late amendment in both the aggravated burglary and felony murder cases:

The State urges us to make a clear statement as to whether an analysis of the prejudice to a defendant's substantial rights is necessary in each case in which either felony murder or the underlying felony supporting felony murder are not charged in the complaint/information.

The answer to the State's request for clarification is rudimentary. We can all agree that a criminal defendant is constitutionally entitled to a fair trial, and that entitlement is a substantial right which is unrelated to the quantum of evidence against the defendant. Cf. State v. Tosh, 278 Kan. 83, 97, 91 P.3d 1204 (2004) ("Denial of a fair trial violates the due process rights of the guilty defendant just as surely as those of the innocent one."). "The fundamental requirement of due process is a fair trial in a fair tribunal. The essential elements of due process of law are notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case." In re Care & Treatment of Hay, 263 Kan. 822, Syl. ¶ 4, 953 P.2d 666 (1998).

Obviously, trial by ambush does not comport with due process. Therefore, where a jury is instructed to convict a defendant in a manner or upon a theory which was not identified in the charging document, an analysis of whether the defendant had sufficient notice to pass due process muster is in order. Thus, the analysis of whether Wade's felony-murder conviction can stand in the face of the erroneous aggravated burglary instruction tracks that of the aggravated burglary conviction by analyzing the prejudice to Wade's substantial rights.

When the State cured its defective amended complaint/information by notifying the ourt and defendant that the aggravated burglary charge was based upon an intended ulterior felony of premeditated first-degree murder, it assumed the burden of proving premeditation as an element of first-degree murder under either of the alternative means. To prove premeditated first-degree murder, the State had to prove that Wade had a premeditated intent to kill Juul when he discharged the firearm. To prove felony murder, the State had to prove that Wade had a premeditated intent to kill Juul when he made the unauthorized entry into Coffman's house.

Thus, Wade could prevail on the charge of first-degree murder, either premeditated or felony murder, by convincing the jury that he never "formed the design or intent to kill before the act." PIK Crim. 3d 56.04(b) (defining premeditation). Therefore, our above analysis of the prejudice visited upon Wade by the erroneous aggravated burglary instruction applies equally to his felony-murder conviction. His ability to prepare and present a defense and his decision to waive his Fifth Amendment rights were compromised.

Some nice language regarding notice in felony murder cases.

Monday, July 09, 2007

Follow up on Allen instruction

Rick Kittel had this follow up on my previous entry on a dynamite instruction given before deliberations:
We are arguing that giving of the instruction was reversible error, even though it was given at the beginning of deliberation, because it contains language indicating that another trial would be a burden on both parties. This language (1) is not correct because going to a second trial after a hung jury would not necessarily be a burden to the defendant; in fact it might be quite welcome; and (2) in telling the jury that a trial would be a burden to the defendant the court is effectively telling the jury that the defendant’s exercise of his constitutional rights is a burden to the defendant. This diminishes the defendant’s constitutional rights in the eyes of the jurors and, by association, diminishes the defendant as well. Part (3) of the argument is that the Allen instruction, which tells the jury about the problems of having another trial, is contrary to a separate instruction that informs the jury that it should not be concerned with the disposition of the case after trial. The Allen instruction appears to ask the jury to consider the disposition of the case after trial. Maybe some or all of these issues have been raised before, but it seems to me they are pretty good arguments.

I would add to the first part that describing a jury trial (any jury trial) as a "burden" to the prosecution is probably inaccurate and may denigrate the defendant's right to a jury trial. The reality is that the Constitution places any such "burden" on the prosecution and it should not factor into the jury's determination at all. So, these are some good objections to make during instructions conferences to this instruction. Appellate cases have not been ringing endorsements of this instruction, even when given before deliberations--they just tend to say it is not reversible error. Particularly if there is no objection, appellate courts are not likely to reach this issue in a meaningful way. But we have seen some changes in the PIK instruction based on appellate litigation and, if proper objections are lodged, maybe we can get it even better.

Friday, July 06, 2007

Dynamite instruction and more

Sarah Johnson won in State v. Thompson, No. 95,898 (Kan. App. July 6, 2007) (unpublished), reversing a Montgomery County drug conviction. The COA found three reasons to reverse: an Allen instruction given after jurors announced a deadlock, improper bad acts evidence, and improperly giving the jury a transcript of an admitted audio tape. The COA noted that:
The underlying facts and circumstances developed at trial are known by the parties and need not be iterated in this unpublished opinion. However, we do note that the prosecution against Thompson was based on underwhelming circumstantial evidence. As a result, the trial error we have identified did substantially prejudice Thompson's right to a fair trial.

Is "underwhelming" a word?

You know, I'll never understand why judges don't get that they can't give dynamite instructions after deliberations start. And you especially shouldn't tell jurors "I'll just read to you until you're blue in the face." Just one of life's mysteries, I guess.

[Update: the state did not file a PR and the mandate issued August 9, 2007].

Monday, July 02, 2007

Kansas City district judge appointed

Here is the Governor's press release announcing the appointment of Dan Cahill as District Judge in the Twenty-Ninth Judicial District (Wyandotte County). He will fill the vacancy created by Judge Mikesec's retirement.